Citation Nr: 1520142
Decision Date: 05/11/15 Archive Date: 05/26/15
DOCKET NO. 04-06 413 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire
THE ISSUE
Entitlement to total a disability rating based on individual unemployability (TDIU) for the period prior to May 4, 2006.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESSES AT HEARING ON APPEAL
The Veteran and his fiancé
ATTORNEY FOR THE BOARD
C. Fields, Counsel
INTRODUCTION
The Veteran served on active duty from December 1964 to December 1967.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
This matter initially came before the Board of Veterans' Appeals (Board), from a March 2007 rating decision of the Department of Veterans' Affairs (VA), Regional Offices (RO), in Manchester, New Hampshire, which denied entitlement to a TDIU.
The Board addressed this issue previously in January 2012, September 2013, and May 2014, at which points it was remanded for further development. The Board summarized the complex procedural history of various issues on appeal at that time.
After the January 2012 Board remand, the RO granted a TDIU effective May 4, 2006; however, the issue of entitlement to a TDIU prior to May 4, 2006, remained on appeal. After several remands, this issue is now ready for a decision.
FINDINGS OF FACT
The Veteran was unable to secure or maintain substantially gainful employment consistent with his prior education and work history due solely to the effects of service-connected disabilities for the entire period on appeal prior to May 4, 2006.
CONCLUSION OF LAW
The criteria for a TDIU for the appeal period on appeal prior to May 4, 2006, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A TDIU is warranted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disability. Consideration should be given to the level of education, special training, and prior work experience, but not to the Veteran's age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Faust v. West, 13 Vet. App. 342 (2000).
Generally, to be eligible for a TDIU a schedular percentage threshold must be met, as set forth in under 38 C.F.R. § 4.16(a). Nevertheless, VA's policy is to grant a TDIU in all cases where the evidence shows that service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).
The Veteran is service-connected for post-operative residuals of calcification of the right elbow, and associated right ulnar neuropathy; post-operative residuals of hemorrhoidectomy with stricture of the anus, and associated irritable bowel syndrome; and adjustment disorder. Prior to May 4, 2006, the Veteran did not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a), as his combined total disability rating was 60 percent from August 2002 forward, with the exception of a temporary period of 100 percent rating based on surgery and convalescence.
Although the Board is required to obtain the Compensation and Pension (C&P) Service Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing to 38 U.S.C.A. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)).
Upon remand, in September 2014, a VA examiner reviewed the entire claims file and opined that it was at least as likely as not (50 percent or greater probability) that the Veteran's service-connected physical disabilities would have precluded him from obtaining or maintaining employment during the period prior to May 4, 2006, irrespective of any other potentially non-service connected disabling conditions.
The examiner reasoned that examinations in October 2002, September 2003, and December 2004 all indicated that the Veteran had significant impairment of his right elbow, arm, and hand, including difficulty holding objects or use of the 4th or 5th digits of the right hand. The examiner stated that it was likely that from 1995, when he stopped work reportedly due to his disability, to May 4, 2006, the Veteran would have had the same functional limitations as described on subsequent exams.
The examiner acknowledged that the Veteran's right elbow disability would not likely have prevented all sedentary work prior to May 2006. She noted, however, that the Veteran had always worked as a laborer and carpenter, and he had a GED with no any additional training. Therefore, the examiner opined that it was likely that from 1995 to May 2006, the Veteran's education and occupational experience would have precluded him from obtaining and maintaining most substantially gainful employment that he may have been physically capable of performing.
The examiner noted that the Veteran's hemorrhoid condition and associated irritable bowel syndrome would likely have impacted his work activity prior to May 2006 primarily due to a need for ready access to restroom facilities.
The examiner indicated that she was not qualified to opine on functional limitations due to the Veteran's service-connected adjustment disorder. She reiterated, however, that his non-mental health service-connected disabilities alone would have at least as likely as not prevented gainful employment prior to May 4, 2006.
In a January 2015 report, the C&P Director concluded that the Veteran's service-connected disabilities did not prevent substantially gainful employment prior to May 4, 2006. The Director referenced treatment records from 2003 to 2006 in which the Veteran reported increased symptoms after repetitive use of his right arm and elbow. An orthopedic clinic record in 2003 noted that the Veteran would not be able to return to a job that required heavy lifting due to his right elbow, but that he would be able to performing a less demanding job. A November 2005 VA examiner stated that the Veteran's right elbow condition would have significant effects on his prior occupation due to difficulty reaching, weakness, and pain. The C&P Director did not discuss the results of the prior examinations in 2002, 2003, or 2004, or the Veteran's prior work history and education. As such, this opinion has low probative value and is outweighed by the September 2014 examiner's opinion.
Resolving doubt in the Veteran's favor, the criteria for TDIU on an extraschedular basis prior to May 4, 2006, are met for the entire period on appeal. 38 C.F.R. § 4.3.
The Board has not set a specific effective date for the grant of TDIU so that the Veteran will have the opportunity for that downstream issue to be adjudicated by an agency of original jurisdiction and he will be able to provide evidence and argument.
ORDER
A TDIU is granted for the entire period on appeal prior to May 4, 2006.
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs